Subpoena to testify at a deposition

September 24, 2009

CJE Opinion No. 2009-5     

You are a Trial Court Judge who has learned that you are about to be served with a subpoena to testify at a deposition in connection with two related civil suits. You inquire of the Committee whether under the Code of Judicial Conduct you are permitted or required to testify. You have provided the Committee with the following facts:

Some years ago, you prepared  estate planning documents for  your clients, whom we shall call the "Husband"  and "Wife". The documents were executed by the clients and included wills and a document that we shall call the "Trust". The Wife died in 1995 and you settled her estate.

The Wife had a  child of her own, hereafter the "Stepson", [not the child of the Husband.] The Husband and Wife had a child together, hereafter the "Son". The Son has a child, hereafter the "Granddaughter". After the Wife's death, the Husband took steps purportedly to amend the Trust.  This action has generated litigation both in New Hampshire and in Massachusetts , testing whether the Husband had the authority to amend the Trust or revoke the Trust or to modify the beneficial interests of the parties. The Plaintiffs to the litigation are the Son, both individually and in his capacity as Trustee of the Trust and the Granddaughter. The Defendants are the Husband, both individually and in his capacity as Trustee of the Trust, and the Stepson as he is Trustee of the Trust, and unascertained heirs.

After your appointment to the bench, you transferred your client files to another lawfirm.

You have been served by Plaintiffs' counsel with a Subpoena Duces Tecum for the production of numerous documents related to the legal work that you did for the Husband and Wife. You have consulted with and are represented by your own counsel. The Husband, represented by his own counsel, waived any attorney-client privilege as to the documents in your former clients' file, and, as a result, the documents have been turned over to Plaintiffs' counsel by the law firm that has custody of your files.

Your inquiry whether you may or are required to testify implicates primarily Section 2B of the Code of Judicial Ethics which states:

"A judge shall not allow family, social, political, or other relationships to influence the judge's judicial  conduct or judgment. A judge shall nor lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special  position to influence the judge. A judge shall not testify voluntarily as a character witness in an adjudicatory proceeding."

As we said in Opinion 2006-2, citing the Commentary to the Code:

"A judge must not testify voluntarily as a character witness in an adjudicatory proceeding because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness. Adjudicatory proceedings include not only proceedings before courts but also before administrative agencies , including disciplinary bodies."(1)

The prohibition against testifying as a character witness does not apply to a judge's testifying as a fact witness in an adjudicatory proceeding. As we said in Opinion 2001-2, where we held  that a judge could produce a factual affidavit in connection with a former client's parole hearing:

"Canon 2B's prohibition on voluntary proffers of character testimony does not prohibit signing or submitting to a tribunal an affidavit containing factual, material information about which the judge has percipient knowledge....That is particularly true when...the judge has particular knowledge of relevant matters that is unavailable from any other source." (Emphasis added.)

Since your deposition testimony sought by Plaintiffs' counsel is not voluntary and you would be appearing pursuant to a subpoena, your testimony is treated differently under the Code. See  Opinions 97-2 and 98-6.  There, the Committee said not only that the judge could testify pursuant to a subpoena, but also that the judge was obliged to comply with a summons to testify.

The committee concludes that your testimony concerning facts within your knowledge does not violate the Code of Judicial Ethics.  We note, however, several important caveats, the first of which is the obvious issue of attorney-client privilege.(2)  While it is not within this Committee's jurisdiction to render opinions on such matters, you should make certain that you either have the Husband's (your former client) waiver of the attorney-client privilege or you should obtain competent legal advice from your own counsel as to whether the privilege should be asserted by you on behalf of the former client. You should also separately satisfy yourself as to any legal obligation you may have to assert the privilege on behalf of the deceased client, the Wife.

Secondly, as in other opinions that we have issued, we have advised that the judge take steps to ascertain whether the information sought may be obtained from some other source. In this case, it appears that you have through your attorney already done this and still your deposition is sought on the ground that you alone have percipient information sought by the litigants.

Thirdly, should you conclude after consultation with your counsel and counsel for the former client, that the issue of attorney-client privilege has been resolved and you are prepared to testify, you should limit your testimony to facts within your knowledge. As we said in Opinion 2006-2, your testimony must be scrupulously true, accurate and complete. You should limit yourself to the facts and not engage in opinion as that might be perceived as lending the prestige of your office to your former client's cause. Furthermore, you should not strategize with your former client's current counsel or take steps to advance his cause as to do so would violate the prohibition in Section 4 G of the Code against your engaging in the practice of law. With these cautions in mind, the Committee concludes that your testimony would not violate the Code of Judicial Conduct.


1 Clearly, a deposition in connection with a pending lawsuit falls within the broad scope of a proceeding before a court.

2 Your inquiry states that your former client has only waived the privilege as to documents in the file, already produced.